There have been two significant
changes to the law, one to take effect in June and the other in September:
amendments to the Family Law Act which
take effect on 7 June, 2012, and repeal of the Domestic and Family Violence Protection Act 1989 and replacement
with the 2012 Act, which takes effect on 17 September, 2012.

Both changes have been driven by various
reviews of how Australia’s laws deal with domestic violence, a process which
accelerated following the death of Darcey Freeman.

Family
Law Act Amendments

The
Family Law Legislation Amendment (Family
Violence and Other Measures) Act 2011 received royal assent on 7 December
2011.Certain portions of that Act
commenced on 7 December 2011, most importantly as to who is able to witness
affidavits in the Family Court, with the insertion of a new section 98AB of the
Family Law Act [and I note the previous rules on swearing affidavits in the
Federal Magistrates Court still apply in that court – under section 186 of the
Evidence Act 1995], other portions commenced on 4 January 2012 [amendments to
the Bankruptcy Act 1966 and related amendments to the Family Law Act], but the
family violence provisions do not commence until 7 June 2012.

There
are some significant changes with which we must all be familiar.

The
explanatory memorandum says, relevantly:

“The
Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
(the ‘Family Violence Bill’) will amend the Family Law Act 1975 (Cth) to
provide better protection for children and families at risk of violence and
abuse.The Bill also makes several
technical amendments which correct drafting and minor policy oversights and
provide other efficiencies for the courts and litigants.

The
Family Violence Bill responds to reports received by the Government into the
2006 family law reforms and how the family law system deals with family violence.The reports indicate that the Act fails to
adequately protect children and other family members from family violence and
child abuse.These reports are the
Evaluation of the 2006 family law reforms by the Australian Institute of Family
Studies (AIFS); Family Courts Violence Review by the Honourable Professor
Richard Chisholm AM; and Improving responses to family violence in the family
law system: An advice on the intersection of family violence and family law
issues by the Family Law Council.

Other
research reports on family violence, shared care and infant development further
provide a strong evidence base for reform.These reports are: Family Violence and Family Law in Australia: the
Experiences and Views of Children and Adults from Families who Separated
Post-1995 and Post-2006 collaboratively produced by Monash University, the
University of South Australia and James Cook University; Shared Care Parenting
Arrangements since the 2006 Family Law Reforms by the Social Policy Research
Centre of the University of New South Wales; and Post-separation parenting
arrangements and developmental outcomes for infants and children by Jennifer
McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wills and Caroline Long.

The
safety of children is of critical importance and the Government takes the issue
of addressing and responding to family violence and child abuse very
seriously.The family law system must
prioritise the safety of children to ensure the best interests of children are
met.The Family Violence Bill sends a
clear message that family violence and child abuse are unacceptable.

These
amendments address issues of significant community concern by strengthening the
role of family courts, advisers and parents in preventing harm to children
while continuing to support the concepts of shared parental responsibility and
shared care, where this is safe for children.

The
key amendments made by the Family Violence Bill will:

·prioritise the safety of children
in parenting matters;

·change the definitions of ‘abuse’
and ‘family violence’ to better capture harmful behaviour;

·strengthen advisers obligations
by requiring family consultants, family counsellors, family dispute resolution
practitioners and legal practitioners to prioritise the safety of children;

·ensure the courts have better
access to evidence of abuse and family violence by improving reporting
requirements; and

·make it easier for state and
territory child protection authorities to participate in family law proceedings
where appropriate.”

Definition of abuse

The
definition of “abuse” will change.It
will be:

“ ‘Abuse’, in relation to a child, means:

(a)an assault, including a sexual assault,
of the child; or

(b)a person (the first person) involving
the child in a sexual activity with the first person or another person in which
the child is used, directly or indirectly, as a sexual object by the first
person or the other person, and where there is unequal power in the
relationship between the child and the first person; or

(c)causing the child to suffer serious
psychological harm, including (but not limited to) when that harm is caused by
the child being subjected to, or exposed to, or exposed to, family violence; or

•There was a change to the assault
definition in (a) so that no longer does the assault need to occur “which is an offence under a law, written or
unwritten, enforced in a State or Territory in which the act constituting the
assault occurs” and can therefore occur outside Australia.

•There is no change to paragraph (b).

•Paragraph (c) is new and there is are
new definitions of “exposed to” and “family violence”.

•Paragraph (d) is new.

•The much wider definition of “abuse”
to include the child suffering serious psychological harm or serious neglect
has significant implications in practice including mandatory notifications
which I will refer to below.

The
explanatory memorandum states:

“As
with the existing definition of ‘abuse’, proposed paragraph (a) provides that
an assault, including a sexual assault, amounts to abuse.However, the new definition will remove the
requirement for the assault to be an offence under an enforceable law in a
State or Territory.This means that
those working with the Act, including courts, legal practitioners and family
members will not be required to have regard to the terms of State and Territory
laws when considering whether abuse has occurred.The new definition will remove uncertainty
about knowing the elements of an offence and whether an offence has been
committed…

The
meaning of neglect is not defined and therefore takes its ordinary
meaning.Neglect encompasses a range of
acts of omission including failure to provide adequate food, shelter, clothing,
supervision, hygiene or medical attention.”

Definition of
“member of family”

This
is repealed in section 4(1) and altered in section 4(1AB), and a similar
alteration at the beginning of section 4(1AB).

The
explanatory memorandum states:

“Item
4 repeals the existing definition of ‘member of the family’ in subsection 4(1)
and inserts a new definition which refers the reader to revised subsection
4(1AB).This amendment moves the
description of the purposes for which the definition applies to the substantive
definition.”

Definition of
“family violence”

The
current definition of “family violence” in section 4(1) is to be repealed.It provides:

“
‘Family violence’ means conduct, whether actual or threatened, by a person
towards, or towards, or towards the property of, a member of the person’s
family that causes that or any other member of the person’s family reasonably
to fear for, or reasonably to be apprehensive about, his or her personal
wellbeing or safety.

Note:
A person reasonably fears for, or is reasonably apprehensive about, his or her
personal wellbeing and safety in particular circumstances if a reasonable
person in those circumstances or fearful, or be apprehensive about, his or her
personal wellbeing or safety.”

There
is to be a new definition in section 4AB.

The
definition is significantly wider and removes the need for reasonableness that
was criticised about the definition in section 4(1).The section set out below sets out examples
of family violence but significantly there are these:

•Repeated derogatory taunts;

•Unreasonably denying the family
member their financial autonomy that he or she would otherwise have had;

•Unreasonably withholding financial
support needed to meet the reasonable living expenses of a family member, or
his or her child, at a time when the family member is entirely or predominantly
dependent on the person for financial support;

•Preventing the family member from
making or keeping connections with his or her family, friends or culture.

It
is reasonable to assume in light of this much wider definition that there will
be significantly more notices in Form 4 –Family Violence or Risk of Family
Violence than have been filed to date.

The
definition in section 4AB provides:

“(1)For the purposes of this Act, family violence means violent,
threatening or other behaviour by a person that coerces or controls a member of
the person's family (the family member ), or causes the family member to be
fearful.

(2)Examples of behaviour that may constitute family violence
include (but are not limited to):

(a)an assault; or

(b)a sexual assault or other sexually abusive behaviour; or

(c)stalking; or

(d)repeated derogatory taunts; or

(e)intentionally damaging or destroying property; or

(f)intentionally causing death or injury to an animal; or

(g)unreasonably denying the family member the financial autonomy
that he or she would otherwise have had; or

(h)unreasonably withholding financial support needed to meet the
reasonable living expenses of the family member, or his or her child, at a time
when the family member is entirely or predominantly dependent on the person for
financial support; or

(i)preventing the family member from making or keeping
connections with his or her family, friends or culture; or

(j)unlawfully depriving the family member, or any member of the
family member's family, of his or her liberty.

(3)For the purposes of this Act, a child is exposed to family
violence if the child sees or hears family violence or otherwise experiences
the effects of family violence.

(4)Examples of situations that may constitute a child being
exposed to family violence include (but are not limited to) the child:

(a)overhearing threats of death or personal injury by a member of
the child's family towards another member of the child's family; or

(b)seeing or hearing an assault of a member of the child's family
by another member of the child's family; or

(c)comforting or providing assistance to a member of the child's
family who has been assaulted by another member of the child's family; or

(d)cleaning up a site after a member of the child's family has
intentionally damaged property of another member of the child's family; or

(e)being present when police or ambulance officers attend an
incident involving the assault of a member of the child's family by another
member of the child's family.”

The
explanatory memorandum states:

“The
examples recognise the wider range of behaviour experienced by victims of
family violence.The inclusion of
examples will not exclude any behaviour that is within the general
characterisation set out in subsection 4AB(1).For example, threats of suicide and self-harm are not mentioned in the
definition or examples of ‘family violence’, but will be captured by the
definition where the threat is intended to coerce, control or cause a family
member to be fearful.”

Significantly “exposed” to family violence is
defined in the new section 4AB(3):

“If
the child sees or hears family violence or otherwise experiences the effects of
family violence.”

As
long ago as 1994[3] it
was clear that the Family Court recognised that there could be an impact on
children from family violence even when they did not see or hear it.The definition makes plain that direct
exposure is not required.As you will
have seen above, there is a wide list of examples of when the child might be
exposed to family violence as set out in section 4AB(4).

The
explanatory memorandum states:

“This
reflects current social science and approaches to child protection, which
indicate that exposure to violence threatens a child’s physical, emotional,
psychological, social, education and behavioural wellbeing…

The
examples clarify that there does not have to be intent for a child to hear,
witness or otherwise be exposed to family violence.”

Goodbye to Families,
Marriage and Separation

Section
12G, which requires us to give this brochure to clients or the other party,
will be repealedas of 7 June. This
will inevitably mean that some forms will change.

Alteration of the
objects of part 7

Probably
the most significant amendment to the Act is also the shortest. For the first
time, the courts will be required, as will we as practitioners, to take an
explicit human rights perspective when dealing with parenting matters. An
additional object has been added pursuant to section 60B:

“To
give effect to the Convention on the Rights of the Child done at New York on 20
November 1989.”

It
might appear that the Convention has been incorporated into municipal law.
Contrast this to the approach by Mason CJ and Deane J in Teoh’s case (1995)[5]:

“But
the fact that the Convention has not been incorporated into Australian law does
not mean that its ratification holds no significance for Australian law. Where
a statute or subordinate legislation is ambiguous, the courts should favour
that construction which accords with Australia's obligations under a treaty or
international convention to which Australia is a party, at least in those cases
in which the legislation is enacted after, or in contemplation of, entry into,
or ratification of, the relevant international instrument. That is because
Parliament, prima facie, intends to give effect to Australia's obligations under
international law.

It
is accepted that a statute is to be interpreted and applied, as far as its
language permits, so that it is in conformity and not in conflict with the
established rules of international law. The form in which this principle has
been expressed might be thought to lend support to the view that the
proposition enunciated in the preceding paragraph should be stated so as to
require the courts to favour a construction, as far as the language of the
legislation permits, that is in conformity and not in conflict with Australia's
international obligations. That indeed is how we would regard the proposition
as stated in the preceding paragraph. In this context, there are strong reasons
for rejecting a narrow conception of ambiguity. If the language of the
legislation is susceptible of a construction which is consistent with the terms
of the international instrument and the obligations which it imposes on
Australia, then that construction should prevail. So expressed, the principle
is no more than a canon of construction and does not import the terms of the
treaty or convention into our municipal law as a source of individual rights
and obligations.

28.
Apart from influencing the construction of a statute or subordinate
legislation, an international convention may play a part in the development by
the courts of the common law. The provisions of an international convention to
which Australia is a party, especially one which declares universal fundamental
rights, may be used by the courts as a legitimate guide in developing the
common law. But the courts should act in
this fashion with due circumspection when the Parliament itself has not seen
fit to incorporate the provisions of a convention into our domestic law.
Judicial development of the common law must not be seen as a backdoor means of
importing an unincorporated convention into Australian law. A cautious
approach to the development of the common law by reference to international
conventions would be consistent with the approach which the courts have
hitherto adopted to the development of the common law by reference to statutory
policy and statutory materials. Much will depend upon the nature of the
relevant provision, the extent to which it has been accepted by the
international community, the purpose which it is intended to serve and its
relationship to the existing principles of our domestic law.[6]”
(emphasis added)

Although
Teoh’s case has been applied[7],
Parliament is now saying explicitly that the Convention should be given effect.
However, the explanatory memorandum states that the Convention has not been incorporated as municipal law:

“The
purpose of this object is to confirm, in cases of ambiguity, the obligation on
decision makers to interpret Part VII of the Act, to the extent its language
permits, consistently with Australia’s obligations under the Convention.The Convention may be considered as an
interpretive aid to Part VII of the Act.To the extent that the Act departs from the Convention, the Act would
prevail.This provision is not equivalent to incorporating the Convention into
domestic law.

24.Australia ratified the Convention in 1990
and, in doing so, committed to protecting and ensuring children's rights.The Convention contains the full range of
human rights – civil, cultural, economic, political and social rights.These rights can be broadly grouped as
protection rights, participation rights and survival and development
rights.One of the main principles on
which the Convention is based is the obligation to have regard to the best
interests of the child as a primary consideration in decision-making.Part VII of the Act is based on this same
principle; although the best interests of the child are elevated to ‘paramount’
status in several provisions.The
reference to the Convention in section 60B does not adversely affect these
provisions in Part VII or dilute the meaning of ‘paramount consideration’.Nothing in the Convention prevents Australia
enacting stronger protections for the rights of the child than the Convention
itself prescribes.”(emphasis
added)

Significant
portions of the Convention are these:

•Portion
of the recital.

In
the Universal Declaration of Human Rights, the United Nations has proclaimed
that childhood is entitled to special care and assistance.

•Convinced that the family, as a
fundamental group of society in the natural environment for the growth and
well-being of all its members and particularly children, should be afforded the
necessary protection and assistance so that it can fully assume its
responsibilities within the community.

•Recognizing that the child, for the
full and harmonious development of his or her personality, should grow up in a
family environment, in an atmosphere of happiness, love and understanding.

•Considering that the child should be
fully prepared to live an individual life in society, and brought up in the
spirit of the ideals proclaimed in the Charter of the United Nations and in
particular in the spirit of peace, dignity, tolerance, freedom, equality and
solidarity.

•Bearing in mind that, as indicated in
the Declaration of Rights of the Child, “the child, by reason of his physical
and mental immaturity, needs special safeguards and care, including appropriate
legal protection, before as well as after birth”.

•Recognizing that, in all countries in
the world, there are children living in exceptionally difficult conditions, and
that such children need special consideration.

•Taking due account of the importance
of the traditions and cultural values of each people for the protection and
harmonious development of the child.

•Article
1.For the purposes of the present
Convention, a child means every human being below the age of eighteen years
unless, under the law applicable to the child, majority is obtained earlier.

•Article
2 States Parties shall respect and ensure the rights set forth in the
present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child’s or his or her parent’s
or legal guardian’s race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability, birth or
other status.

•Article
2 paragraph 2 States Parties shall take all appropriate measures to ensure
that the child is protected against all forms of discrimination or punishment
on the basis of the status, activities, expressed opinions, or beliefs of the
child’s parents, legal guardians, or family members.

[I
note that the child must be protected against all forms of discrimination
because of, for example, the religious beliefs of one of the child’s
parents.It may well be that the court
has to take into account, to ensure that there is compliance with the
convention, the religious beliefs of both
of the parents, including if one parent does not have religious beliefs.]

•Article
3 point 1In all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.

•Article
3 point 2 States Parties undertake to ensure the child such protection and
care as is necessary for his or her well-being, taking into account the rights
and duties of his or her parents, legal guardians, or other individuals legally
responsible for him or her, and, to this end, shall take all appropriate
legislative and administrative measures.

•Article
3 point 3 States Parties shall ensure that the institutions, services and
facilities responsible for the care or protection of children shall conform
with the standards established by competent authorities, particularly in the
areas of safety, health, and the number and suitability of their staff, as well
as competence at provision.

•Article
5 States Parties shall respect the responsibilities, rights and duties of
parents or, where applicable, the members of the extended family or community
as provided for by local custom, legal guardians or other persons legally
responsible for the child, to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the exercise by
the child of the rights recognized in the present Convention.

•Article
6 point 2 States Parties shall ensure to the maximum extent possible the
survival and development of the child.

•Article
7 point 1 The child shall be registered immediately after birth and shall
have the right from birth to a name, the right to acquire a nationality and, as
far as possible, the right to know and be cared for by his or her parents.

•Article
8 point 1 States Parties undertake to respect the right of the child to
preserve his or her identity, including nationality, name and family relations
as recognized by law without unlawful interference.

•Article
8 point 2 Where a child is illegally deprived of some or all of the
elements of his or her identity, the parties shall provide appropriate
assistance for protection, with a view to speedily re-establish his or her
identity.

•Article
9 point 1 States Parties shall ensure that a child shall not be separated
from his or her parents against their will, except when competent authorities
subject to judicial review determine, in accordance with applicable law and
procedures, that such separation is necessary for the best interests of the
child.Such determination may be necessary
in a particular case such as one involving abuse or neglect of the child by the
parents, or one where the parents are living separately and a decision must be
made as to the child’s place of residence.

•Article
9 point 2 In any proceedings pursuant to paragraph 1 of the present article,
all interested parties shall be given are[sic.] opportunity to participate in
the proceedings and make their views known.

•Article
9 point 3 Parties shall respect the right of the child who is separated
from one or both parents to maintain personal relations and direct contact with
both parents on a regular basis, except if it is contrary to the child’s best
interests.

•Article
10 point 1 In accordance with the obligation of states parties under
article 9, paragraph 1, applications by a child or his or her parents to enter
or leave a state party for the purpose of family reunification shall be dealt
with by States Parties in a positive, humane and expeditious manner.States Parties shall further ensure that the
submission of such a request shall entail no adverse consequences for the
applicants and for the members of their family.

•Article
10 point 2 A child whose parents reside in different States shall have the
right to maintain on a regular basis, save in exceptional circumstances
personal relations and direct contact with both parents.Towards that end and in accordance with the
obligation of States Parties under Article 9, paragraph 1, States Parties shall
respect the right of the child and his or her parents to leave any country,
including their own, and to enter their own country.The right to leave any country shall be
subject only to such restrictions as are prescribed by law and which are
necessary to protect the national security, public order (ordre public), public
health or morals or the rights and freedoms of others and are consistent with
the other rights recognised in the present Convention.

•Article
11 point 1 States Parties shall take measures to combat the illicit
transfer and non return of children abroad.

•Article
12 point 1 States Parties shall assure to the child who is capable of
forming his or her own views the right to express those views freely in all
matters affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child.

•Article
12 point 2 For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of national
law.

•Article
14 point 1 States Parties shall respect the right of the child to freedom of
thought, conscience and religion.

•Article
14 point 2 States Parties shall respect the rights and duties of the
parents and, when applicable, legal guardians, to provide direction to the
child in the exercise of his or her right in a manner consistent with the
evolving capacities of the child.

•Article
14 point 3 Freedom to manifest one’s religion or beliefs may be subject
only to such limitations as are prescribed by law and are necessary to protect
public safety, order, health or morals, or the fundamental rights and freedoms
of others.

•Article
16 No child shall be subjected to
arbitrary or unlawful interference with his or her privacy, family, home or
correspondence, nor to unlawful attacks on his or her honour and reputation.

•Article
16 point 2 The child has the right to the protection of the law against
such interference or attacks.

•Article
18 point 1 States Parties shall use their best efforts to ensure
recognition of the principle that both parents have common responsibilities for
the upbringing and development of the child.Parents or, as the case may be, legal guardians, have the primary
responsibility for the upbringing and development of the child.The best interests of the child will be their
basic concern.

•Article
18 point 2 For the purpose of guaranteeing and promoting the rights set
forth in the present Convention, States Parties shall render appropriate
assistance to parents and legal guardians in the performance of the
child-rearing responsibilities and shall ensure the development of
institutions, facilities and services for the care of children.

•Article
19 point 1 States Parties shall take all appropriate legislative,
administrative, social and educational measures to protect the child from all
forms of physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including sexual abuse, while in the
care of parent(s), legal guardian(s) or any other person who has the care of
the child.

•Article
19 point 2 Such protective measures should, as appropriate, include
effective procedures for the establishment of social programmes to provide
necessary support for the child and for those who have the care of the child,
as well as for other forms of prevention and for identification, reporting,
referral, investigation, treatment and follow up of instances of child
maltreatment described heretofore, and, as appropriate, for judicial
involvement.

•Article
20 point 1 A child temporarily or permanently deprived of his or her family
environment, or in whose own best interests cannot be allowed to remain in that
environment, shall be entitled to special protection and assistance provided by
the State.

•Article
20 point 2 States Parties shall in accordance with their national laws
ensure alternative care for such a child.

•Article
20 point 3 Such care could include, inter alia, foster placement, kafalah
of Islamic law, adoption or of necessary placement in suitable institutions for
the care of the child.When considering
solutions, due regard shall be paid to the desirability of continuity in a
child’s upbringing and to the child’s ethnic, religious, cultural and
linguistic background.

•Article
23 point 1 States Parties recognise that a mentally or physically disabled
child shall enjoy a full and decent life, in conditions which ensure dignity,
promotes self-reliance and facilitate the child’s active participation in the
community.

•Article
24[in part] States Parties
shall ensure full implementation of [the right of the child to enjoyment of the
highest attainable standard of health and of facilities for the treatment of
illness and rehabilitation of health] and, in particular, shall take
appropriate measures: ….(e)to ensure
that all segments of society, in particular parents and children, are informed,
have access to education and are supported in the use of basic knowledge of
child health and nutrition, the advantages of breast feeding, hygiene and
environmental sanitation and the prevention of accidents.

•Article
24 point 3 States Parties shall take all effective and appropriate measures
with a view to abolishing traditional practices prejudicial to the health of
children.

•Article
27 point 1 States Parties recognise the right of every child to a standard
of living adequate for the child’s physical, mental, spiritual, moral and
social development.

•Article
30 In those states in which ethnic, religious or linguistic minorities of
persons of indigenous origin exist, a child belonging to such minority or who
is indigenous shall not be denied the right, in community with other members of
his or her group, to enjoy his or her own culture, to profess and practise his
or her own religion, or to use his or her own language.

•Article
31 point 1 States Parties recognize the right of the child to rest and
leisure, to engage in play and recreational activities appropriate to the age
of the child and to participate freely in cultural life and the arts.

•Article
31 point 2 States Parties shall respect and promote the right of the child
to participate fully in cultural and artistic life and shall encourage the
provision of appropriate and equal opportunities for the cultural, artistic,
recreational and leisure activity.

•Article
33 States Parties shall take all appropriate measures, including
legislative, administrative, social and educational measures, to protect
children from the illicit use of narcotic drugs and psychotropic substances as
defined in the relevant international treaties, and to prevent the use of
children in the illicit production and trafficking of such substances.

•Article
34 [in part] States Parties undertake to protect the child from all forms
of sexual exploitation and sexual abuse.

•Article
35 States Parties shall take all appropriate national, bilateral and
multilateral measures to prevent the abduction of, the sale of trafficking
children for any purpose or in any form.

•Article
36 States Parties shall protect the child against all other forms of
exploitation prejudicial to any aspects of the child’s welfare.

•Article
37 States Parties shall ensure that:

(a)no child shall be subject to torture or
other cruel, inhuman or degrading treatment or punishment …

•Article
39 States Parties shall take all appropriate measures to promote physical
and psychological recovery and social reintegration of a child victim of any
form of neglect, exploitation, or abuse; torture or any other form of cruel,
inhuman or degrading treatment or punishment; or armed conflicts.Such recovery and reintegration shall take
place in an environment which fosters the health, self respect and dignity of
the child.

•Article
41 Nothing in the present Convention shall affect any provisions which are
more conducive to the realization of the rights of the child and which may be
contained in:

(a)the law of the State Party; or

(b)international law enforced for that
State.

•Article
54 The original or the present Convention, in which the Arabic, Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be deposited
with the Secretary General of the United Nations.

Section 60CC changes

The
most significant change is that to the primary considerations, with the
insertion of a new subsection (2A):

“(2A)In applying the considerations set out in
subsection (2), the court is to give greater weight to the consideration set
out in paragraph (2)(b).”

A
reminder: this is what subsection (2) provides:

“(2)The primary considerations are:

(a)the benefit to the child of having a meaningful relationship
with both of the child's parents; and

(b)the need to protect the child from physical or psychological
harm from being subjected to, or exposed to, abuse, neglect or family
violence.”

The
friendly parent provisions in the current (3)(c), (4) and (4A)are removed. This
is the current (3)(c):

“(c)the willingness and ability of each of the child's parents to
facilitate, and encourage, a close and continuing relationship between the
child and the other parent”.

This
is the new (3)(c) and (ca):

“(c)the extent to which each of the child's parents has taken, or
failed to take, the opportunity:

(i)to participate in making
decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child;

(ca)the extent to which each of the child's parents has fulfilled, or
failed to fulfil, the parent's obligations to maintain the child.”

Changes
to the friendly parent provisions come after the criticisms of Professor
Chisholm[8]:

“On
the material available, it seems likely that the friendly parent provision,
s 60CC(3)(c),while it might have had a beneficial effect in many
situations, has had the undesirable consequence in some cases of discouraging
some parents affected by violence from disclosing that violence to the family
court. It is appropriate, therefore, to consider whether some amendment would
remove this undesirable consequence while retaining the value of the provision
in encouraging parents in ordinary circumstances to facilitate the child’s
relationship with the other parent.

If
the legislation seeks to spell out what is good parenting, it should do so in a
way that is appropriate for all the cases that come to the family courts. If
the legislation is to state the general desirability of facilitating children’s
relationship with the other parent, it should be done in such a way that it
also recognises that there are circumstances in which parents need to take
action to protect their children, and in some cases this means making serious
allegations against the other parent. It is important in these cases that the
understandable desire to emphasise the importance of parents supporting each
other should not inadvertently lead to provisions that deter or discourage the
parent from taking such protective action where this is necessary to protect
the children.”

S.60CC(3)(k)
as to family violence orders is repealed, to be replaced with:

“(k)if a family violence order applies, or has
applied, to the child or a member of the child's family--any relevant
inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;

(ii)the circumstances in which the
order was made;

(iii)any evidence admitted in
proceedings for the order;

(iv)any findings made by the court in, or in proceedings for, the
order;

“(W)hat
is important is the evidence or information relevant to the risk, rather than
whether or not a different court has made a family violence order, or what
evidence was before the court when it did make the family violence order.

The
old paragraph (k), in my view, does not deal appropriately with this matter. By
including family violence orders in this list of matters relevant to the
assessment of children’s interests, it might be taken as suggesting that the
order itself is a factor that should be taken into account. It then partly
retreats from that suggestion by excluding interim and non-contested orders.
The rationale is, obviously, that it may be wrong to infer from the making of
such orders that there is a risk of violence. But is the implication that the
court should infer that there is a risk of violence from the making of final
and contested orders?

I
doubt if that was the intention, and in my view the legislation should not give
the impression that the court will infer from the order itself that a child is
at risk. Such an impression, whether or not it reflects what the court will
actually do, might well encourage people to seek family violence orders in
order to gain some advantage in family court cases.

In
my view the law should do everything possible to enable the court to know about
current family violence orders, so it can avoid making orders that
inadvertently clash with them. Otherwise, what is important is that the court
should learn about the factual circumstances that might suggest a risk to the
child or other person, regardless of what was the basis of a previous family
violence order. As one legal submission pointed out, ‘It is the underlying
allegations that are far more important to the Court in determining the case
than the existence or otherwise of an order’.”

There
is a new s.60CH requiring disclosure of actions taken by child protection
services, such as the Department of Communities:

“60CHInforming court of care arrangements under
child welfare laws

(1)If a party to the proceedings is
aware that the child, or another child who is a member of the child's family,
is under the care (however described) of a person under a child welfare law,
that party must inform the court of the matter.

(2)If a person who is not a party to the
proceedings is aware that the child, or another child who is a member of the
child's family, is under the care (however described) of a person under a child
welfare law, that person may inform the court of the matter.

(3)Failure to inform the court of
the matter does not affect the validity of any order made by the court.
However, this subsection does not limit the operation of section 69ZK (child
welfare laws not affected).

60CIInforming court of notifications to, and
investigations by, prescribed State or Territory agencies

(1)If:

(a)a party to the proceedings is
aware that the child, or another child who is a member of the child's family,
is or has been the subject of:

(i)a notification or report (however
described) to a prescribed State or Territory agency; or

(ii)an investigation, inquiry or
assessment (however described) by a prescribed State or Territory agency; and

(b)the notification, report,
investigation, inquiry or assessment relates to abuse, or an allegation,
suspicion or risk of abuse;

that
party must inform the court of the matter.

(2)If:

(a)a person who is not a party to
the proceedings is aware that the child, or another child who is a member of
the child's family, is or has been the subject of:

(i)a notification or report (however
described) to a prescribed State or Territory agency; or

(ii)an investigation, inquiry or assessment (however
described) by a prescribed State or Territory agency; and

(b)the notification, report,
investigation, inquiry or assessment relates to abuse, or an allegation,
suspicion or risk of abuse;

that person may inform the court
of the matter.

(3)Failure
to inform the court of the matter does not affect the validity of any order
made by the court.

(4)In
this section:

"prescribed
State or Territory agency" means an agency that is a prescribed State or
Territory agency for the purpose of section 69ZW.”

There is a new duty
imposed on us in advising clients in addition to that under s.63DA:

“60D Adviser's obligations in
relation to best interests of the child

(1)If
an adviser gives advice or assistance to a person about matters concerning a
child and this Part, the adviser must:

(a)inform the person that the person
should regard the best interests of the child as the paramount consideration;
and

(b)encourage the person to act on
the basis that the child's best interests are best met:

(i)by the child having a meaningful
relationship with both of the child's parents; and

(ii)by the child being protected from
physical or psychological harm from being subjected to, or exposed to, abuse,
neglect or family violence; and

(iii)in applying the considerations
set out in subparagraphs (i) and (ii)--by giving greater weight to the
consideration set out in subparagraph (ii).

(2)In
this section:

"adviser"
means a person who is:

(a)a legal practitioner; or

(b)a family counsellor; or

(c)a family dispute resolution
practitioner; or

(d)a family consultant.”

This addition
answers the criticism of Professor Chisholm, who stated[10]:

“In
my view the present wording of s 63DA is inconsistent with one of the two major
themes of the legislation. It effectively invites the professional to ignore
issues of family violence and safety, and focus only on the benefits of
parental involvement. By doing so it seems likely to have exposed people to
increased risks of violence, by contributing to the impression that the family
law system is more interested in encouraging parents to be involved than in respecting
the safety of children and adults.”

Section
65DAA has been amended, by the deletion of this note in (5), which deals with
reasonable practicality:

“Note
1:Behaviour of a parent that is
relevant for paragraph (c) may also be taken into account in determining what
parenting order the court should make in the best interests of the child.
Subsection 60CC(3) provides for considerations that are taken into account in
determining what is in the best interests of the child. These include:

(a)the willingness and ability of each of the
child's parents to facilitate, and encourage, a close and continuing
relationship between the child and the other parent (paragraph 60CC(3)(c));

(b)the attitude to the child, and to the
responsibilities of parenthood, demonstrated by each of the child's parents
(paragraph 60CC(3)(i)).”

Obligations to notify the
Department

Currently
a party alleging abuse or risk of abuse must file and serve a form 4, pursuant
to s.67Z. This obligation has been extended to independent children’s lawyers,
because the term “party” has been substituted with “interested person” which is defined as:

“(a)a party to the proceedings; or

(b)an independent children's lawyer who represents the interests of a
child in the proceedings; or

(c)any other person prescribed by the regulations for the purposes of
this paragraph.”

Furthermore,
the mandatory reporting regime
imposed on court officials and independent children’s lawyers in cases of abuse
under s.67ZA(2) must be complied with, unless it is known that a prior
notification has taken place. Subsections (2) to (4) will now read:

“(2)If the person has reasonable grounds for suspecting that a child
has been abused, or is at risk of being abused, the person must, as soon as
practicable, notify a prescribed child welfare authority of his or her
suspicion and the basis for the suspicion.

(3)If the person has reasonable
grounds for suspecting that a child:

(a)has been ill treated, or is at
risk of being ill treated; or

(b)has been exposed or subjected, or
is at risk of being exposed or subjected, to behaviour which psychologically
harms the child;

the
person may notify a prescribed child welfare authority of his or her suspicion
and the basis for the suspicion.

Note:The obligation under subsection (2) to notify
a prescribed child welfare authority of a suspicion that a child has been
abused or is at risk of being abused must be complied with, regardless of
whether this subsection also applies to the same situation.

(4)The person need not notify a
prescribed child welfare authority of his or her suspicion that a child has
been abused, or is at risk of being abused, if the person knows that the
authority has previously been notified about the abuse or risk under subsection
(2) or subsection 67Z(3), but the person may notify the authority of his or her
suspicion.”

If
a party or an independent children’s lawyer alleges
that there has been family violence or risk of family violence, then the form 4
must be filed by that person:

“67ZBAWhere interested person makes allegation of
family violence

(1)This section applies if an
interested person in proceedings for an order under this Part in relation to a
child alleges, as a consideration that is relevant to whether the court should
make or refuse to make the order, that:

(a)there
has been family violence by one of the parties to the proceedings; or

(b)there
is a risk of family violence by one of the parties to the proceedings.

(2)The interested person must file a
notice in the prescribed form in the court hearing the proceedings, and serve a
true copy of the notice upon the party referred to in paragraph (1)(a) or (b).

(3)If the alleged family violence
(or risk of family violence) is abuse of a child (or a risk of abuse of a
child):

(a)the
interested person making the allegation must either file and serve a notice
under subsection (2) of this section or under subsection 67Z(2) (but does not
have to file and serve a notice under both those subsections); and

(b)if
the notice is filed under subsection (2) of this section, the Registry Manager
must deal with the notice as if it had been filed under subsection 67Z(2).

Note:If an allegation of abuse of a child (or a
risk of abuse of a child) relates to a person who is not a party to the
proceedings, the notice must be filed in the court and served on the person in
accordance with subsection 67Z(2).

(4)In this section:

"interested person" in
proceedings for an order under this Part in relation to a child, means:

(a)a
party to the proceedings; or

(b)an
independent children's lawyer who represents the interests of the child in the
proceedings; or

(c)any
other person prescribed by the regulations for the purposes of this paragraph.

"prescribed form" means
the form prescribed by the applicable Rules of Court.

"Registry Manager" has
the same meaning as in section 67Z.”

Section 117AB is
repealed.

Domestic
and Family Violence Protection Act 2012

This Act, which updates and
modifies the legal landscape about domestic violence, takes effect on 17
September, 2012.

The explanatory notes state:

“The Bill provides an accessible civil
legal response for people seeking protection from domestic and family violence
and aims to prevent future acts of violence, rather than focusing, as the
criminal law does, on punishing an offender for past behaviour….

A civil process enables a victim of
domestic and family violence to make an application for a domestic violence
order independently of the police. The standard of proof is lower than for
criminal proceedings and this means less evidence is required to obtain a
domestic violence order than to obtain a criminal conviction. While a domestic
violence order carries the threat of criminal sanctions if it is not complied
with, the making of an order does not immediately subject the respondent to a
penalty. This is important, as victims of domestic and family violence often
want the violence to stop, but do not want the respondent punished.”

The Minister for Community Services and Housing and Minister for Women,
the Hon Karen Struthers in the second reading speech stated:

“I am very pleased to rise today to introduce into the House a bill which
comprehensively strengthens and modernises Queensland’s 20-year-old domestic
and family violence laws. Every woman, man and child has the right to live free
from violence and abuse. While it is recognised that anyone can be a victim or
perpetrator of domestic violence, the facts show it is most often committed by
men against women and children. In 2009-10, the Queensland Police Service
recorded 49,372 domestic and family violence occurrences, an increase of 11.5
per cent on the previous year, and laid 8,033 charges for breach of a domestic
violence order. The courts received 22,754 applications for domestic violence
orders, an increase of eight per cent on the previous year.

People, predominantly women and children, die as a result of domestic and
family violence. They suffer significant physical and emotional trauma, work
and educational opportunities are affected, lives are disrupted and many
victims of this type of violence become homeless.

The new Domestic and Family Violence Protection Bill 2011, which reflects
contemporary understanding of domestic violence, is now ready for parliament’s
consideration….Queenslanders clearly told the government that, while they
supported the current laws, they wanted to see them strengthened to provide
greater safety for victims of domestic and family violence. They also wanted to
see perpetrators of violence held more accountable for their behaviour. The
bill’s key focus is to maximise the safety and protection of victims and see
perpetrators of violence held more accountable.

The bill includes a wider definition of violence; provides for immediate
protection to victims; allows the police to detain a perpetrator for up to
eight hours; provides greater guidance to identify the person most in need of
protection; provides greater guidance on the impact of domestic violence on
children; provides greater guidance on the use of ouster conditions to keep
victims safe; and increases the maximum penalty available when a domestic
violence order is breached to three years imprisonment.

The bill represents a contemporary civil response to domestic and family
violence…”

The explanatory notes state:

“Policy
objectives and the reasons for them

The review
of the Domestic and Family Violence
Protection Act 1989 is one of the key initiatives under For our Sons and Daughters: A Queensland
Government strategy to reduce domestic and family violence 2009-2014.

The
Queensland Government strategy was developed to address the significant human
and economic costs of domestic violence. Women and children die or suffer
significant physical or emotional trauma as a result of domestic and family
violence, work and educational opportunities are affected, lives are disrupted
and many victims of this type of violence become homeless.

In
2009-2010, the Queensland Police Service recorded 49,372 domestic and family
violence occurrences, an increase of 11.5 per cent on the previous year, and
laid 8033 charges for breach of a domestic violence order. Of the 62 recorded
homicides in 2009-2010, 17 were identified as being related to domestic violence.

The
Queensland Government strategy has the following aims:

·to better
protect victims by breaking the cycle of violence as early as possible;

·to support
communities to promote respectful relationships;

·to provide
effective safety and support programs for people who experience domestic and
family violence; and

·to respond
to people who use domestic and family violence early and hold them accountable.

·The
Domestic and Family Violence Protection Bill 2011 addresses the aims of the
Queensland Government strategy and focuses on effective and timely responses to
provide for the safety of victims of domestic violence and their children and
ensuring that perpetrators of violence are held accountable. As contemporary
legislation, the Bill will make the law accessible to the community.

·Domestic
and family violence is not tolerated in Queensland. The Bill promotes this
message through a preamble, which reflects:

·the aims of
the Queensland Government strategy and the National Plan to Reduce Violence
Against Women and their Children;

·Australia’s
obligations under international conventions relating to the elimination of
violence against women and children; and

·views
expressed during consultation.

The Bill
places greater responsibility for the use of violence on perpetrators of
violence and increases the ability of the court to focus on the safety and
wellbeing of victims.

The Bill
also reflects contemporary understandings of domestic and family violence,
particularly regarding the types of relationships and behaviours covered by the
legislation. The nature and characteristics of domestic and family violence are
reflected in the Bill and comprise behaviours used to exert power and control
over another person. In addition, the definition of domestic and family
violence specifically includes economic, emotional and psychological abuse. The
definition also includes behaviour that is physically or sexually abusive,
threatening or coercive, or behaviour that in any other way controls or
dominates another person. The definition is comprehensive and captures the
range of behaviours that, in a contemporary sense, are understood to
characterise domestic violence.

In the 22
years since the Domestic and Family
Violence Protection Act 1989 was introduced, the community’s awareness
of this form of violence has increased. This has been accompanied by a
significant increase in the numbers of domestic violence applications, from
2957 in 1990 to 22,754 in 2009-2010. A more contemporary definition of domestic
violence will assist police, the courts, support services and the community in
identifying this type of violence and responding effectively to the safety
needs of victims.

Lastly, the
Bill aims to ensure that the person who is most in need of protection is
identified. This is particularly important where cross-applications are made,
which is where each party to a relationship alleges domestic violence against
the other and which often result in cross-orders.

During
consultation, stakeholders reported a disproportionate number of cross-applications
and cross-orders and expressed the concern that in many instances domestic
violence orders are made against both people involved.

This is
inconsistent with the notion that domestic violence is characterised by one
person being subjected to an ongoing pattern of abuse by another person who is
motivated by the desire to dominate and control them. Both people in a
relationship can not be a victim and perpetrator of this type of violence at
the same time.

A
cross-application may be used by a respondent to continue victimising the
aggrieved person, to exact revenge or to gain a tactical advantage in other
court proceedings.Also, violence used
in self-defence and to protect children can be misconstrued as domestic
violence if a broader view of the circumstances is not taken…

Structure of the Bill

The
Domestic and Family Violence Protection Bill 2011 is structured chronologically.
It begins by introducing some of the important definitions in the Act, then
progresses to explaining important concepts about the operation of the Act,
outlining the powers of the court to make orders, police functions and powers,
procedural matters, appeals, and miscellaneous provisions.

The Bill
aims to provide greater clarity and structure by using plain language, a
logical order to the provisions, introducing more divisions and sub-divisions,
and using clear headings for sections, parts and divisions.The proposed structure of the Bill will
provide greater clarity to those who interpret and apply its provisions;
particularly people who are self-represented in proceedings.”

This
Act was passed in the last week of the outgoing Bligh Government with the
support of the LNP.It is to commence on
17 September 2012[11],
at which point the Domestic and Family
Violence Protection Act1989 is
repealed[12].

Long title

This
states:

“An
Act to provide for protection of a person against violence committed or
threatened by someone else if a relevant relationship exists between the
persons, and to make amendments of the Criminal Code, the Evidence Act 1977,
the Police Powers and Responsibilities Act 2000 and the Police Powers and
Responsibilities Regulation 2000 for particular purposes, and to make minor or
consequential amendments of this Act and other legislation as stated in a
schedule”.

Preamble

The
preamble states:

“In
enacting this Act, the Parliament of Queensland recognises the following—

1
Australia is a party to the following instruments—

•
Universal Declaration of Human Rights

•
United Nations Declaration on the Elimination of

Violence
Against Women

•
United Nations Convention on the Rights of the Child

•
United Nations Principles for Older Persons

2
Living free from violence is a human right and fundamental social value.

3
Domestic violence is a violation of human rights that is not acceptable in any
community or culture and traditional or cultural practices can not be relied
upon to minimise or excuse domestic violence.

4
Domestic violence is often an overt or subtle expression of a power imbalance,
resulting in one person living in fear of another, and usually involves an
ongoing pattern of abuse over a period of time.

5
Domestic violence can have serious impacts on people who experience it,
including physical, emotional and psychological harm, and can result in death.

6
Perpetrators of domestic violence are solely responsible for their use of
violence and its impacts on other people.

7
Domestic violence is most often perpetrated by men against women with whom they
are in an intimate partner relationship and their children; however, anyone can
be a victim or perpetrator of domestic violence.

8
Domestic violence is a leading cause of homelessness for women and children.

9
Children who are exposed to domestic violence can experience serious physical,
psychological and emotional harm.

10
Behaviour that constitutes domestic violence can also constitute a criminal
offence.

Minister
Struthers stated in the second reading speech:

“The
bill includes a preamble which provides the opportunity for us, as the
Queensland parliament, to make a clear statement that domestic and family
violence is not acceptable in Queensland communities. The preamble also enables
us as the parliament to recognise domestic and family violence in the context
of relevant international obligations, contemporary social values and human
rights. The preamble identifies some of the features and impacts of domestic
and family violence and recognises civil responses should operate with, not
instead of, the criminal law.”

The
explanatory notes state:

“The
Bill includes a preamble which provides the opportunity for the Queensland
Parliament to make a clear statement that domestic and family violence is a
violation of human rights and, as such, is not acceptable in Queensland
communities. The preamble recognises domestic and family violence in the
context of relevant international obligations, contemporary social values and
human rights. It also identifies the nature, dynamics and impacts of domestic
and family violence and recognises the civil response set out in the Act should
operate with, not instead of, the criminal law.”

Main objects

Section
3 of the Act provides:

“ (1)
The main objects of this Act are—

(a) to
maximise the safety, protection and wellbeing of people who fear or experience
domestic violence, and to minimise disruption to their lives; and

(b) to
prevent or reduce domestic violence and the exposure of children to domestic
violence; and

(c) to
ensure that people who commit domestic violence are held accountable for their
actions.

(2) The
objects are to be achieved mainly by—

(a)
allowing a court to make a domestic violence order to provide protection
against further domestic violence;

and

(b)
giving police particular powers to respond to domestic violence, including the
power to issue a police protection notice; and

(c)
imposing consequences for contravening a domestic violence order or police
protection notice, in particular, liability for the commission of an offence.”

Minister
Struthers stated in the second reading speech:

“The
bill also contains an expanded purpose which outlines the aims of the bill.
These are to prevent or reduce domestic violence, maximise the safety and
protection of victims, minimise the disruption to the lives of victims and
ensure that perpetrators are held accountable for their actions. I am also
pleased to announce the inclusion of principles in the bill. These will provide
guidance to those involved in interpreting and administering the legislation,
including police, courts, lawyers and members of the community. The overarching
principle for administering this legislation is that the safety, protection and
wellbeing of people who fear or experience domestic violence, including
children, are paramount.

This
principle is to influence every decision made and every action taken under the
new law. The preamble and principles provide an overarching framework for the
operation of the legislation and will promote a consistent approach to the
interpretation of this new law.”

Principles

Section
4 provides:

“ (1) This
Act is to be administered under the principle that the safety, protection and
wellbeing of people who fear or experience domestic violence, including
children, are paramount.

(2)
Subject to subsection (1), this Act is also to be administered

under
the following principles—

(a)
people who fear or experience domestic violence, including children, should be
treated with respect and disruption to their lives minimised;

(b)
perpetrators of domestic violence should be held accountable for their use of
violence and its impact on other people and, if possible, provided with an opportunity
to change;

(c) if
people have characteristics that may make them particularly vulnerable to
domestic violence, any response to the domestic violence should take account of
those characteristics;

(d) in
circumstances in which there are conflicting allegations of domestic violence
or indications that both persons in a relationship are committing acts of violence,
including for their self-protection, the
person who is most in need of protection should be identified;

(e) a civil response under this Act should
operate in conjunction with, not instead of, the criminal law.”(emphasis
added)

Principle
(e) responds to the criticism that has existed since prior to the enactment and
the cause of the enactment of the Domestic and Family Violence Protection Act
1989[13],
namely that police failed to use the armoury of weapons available under the
Criminal Code or other legislation, and since the enactment of the 1989 too
rarely charged perpetrators.

The
explanatory notes state:

“The
Bill sets out principles to provide a framework for the Act’s administration.
The principles are to provide guidance to police, lawyers, courts and members
of the community when applying and interpreting the Act.

The provisions dealing with the
objects of the Act, the guiding principles and the preamble will bring the
Queensland legislation in line with the domestic and family violence
legislation in other jurisdictions. They are also consistent with recommendations
made by the Australian Law Reform Commission in its Family Violence – A
National Legal Response report, released in November 2010, and with feedback
from consultation for the review of the Domestic and Family Violence Protection
Act 1989.”

The basic test has changed

Under
the 1989 Act there is a 3 step test in order to obtain a protection order.

1.That
the parties are in the right type of relationship;

2.That an act or a number of acts
of domestic violence have occurred;

3.That further acts are likely.

A
protection order under the 2012 Act may be made if the court is satisfied that:

1.A relevant relationship exists
between the aggrieved and the respondent[14];

2.The respondent has committed
domestic violence against the aggrieved[15];

3.The protection order is necessaryordesirable to protect
the aggrieved from domestic violence.

Significantly
the previous test of further acts of domestic violence being likely or that the
threat is likely to be carried out has been removed.This is following criticism by the Australian
Law Reform Commission[16].

Ground one:
Relevant relationship

Section
13 says that there are 3 types of relationships:

•Intimate personal relationships;

•Family relationships;

•Informal care relationships.

At
first glance this appears that spousal relationships have been abolished.They have not.Section 14 says that there are 3 types of
intimate personal relationships:

•Spousal relationships;

•Engagement relationships;

•Couple relationships.

Spousal
relationship

This
is set out in section 15:

“
(1) A spousal relationship exists between spouses.

Note—

A
reference to a spouse includes a de facto partner. For definitions of spouse
and de facto partner, see the Acts Interpretation Act 1954, sections 36 and
32DA.

(2)
A spouse, of a person, includes—

(a)
a former spouse of the person; and

(b)
a parent, or former parent, of a child of the person.

Example
of a former parent of a child—

a
birth parent who stops being a parent of a child under the Surrogacy Act 2010,
section 39(2)(b)

(3)
For subsection (2)(b), it is irrelevant whether there is or was any
relationship between the parents of the child.”

The
definition of “spousal relationship” is now wider because of the widening of
the definition of “parent”.This is
defined in section 16:

“
(1) A parent, of a child, means—

(a)
the child’s mother or father; and

(b)
anyone else, other than the chief executive (child protection), having or
exercising parental responsibility for the child.

(2)
However, a parent of a child does not include—

(a)
a person standing in the place of a parent of the child on a temporary basis;
or

(b)
an approved foster carer for the child; or

(c)
an approved kinship carer for the child.

(3)
A parent of an Aboriginal child includes a person who, under Aboriginal
tradition, is regarded as a parent of the child.

(4)
A parent of a Torres Strait Islander child includes a person who, under Island
custom, is regarded as a parent of the child.

Example of
relationship covered under the new Act not covered under the old

Bob
and Martha had a child, Billy.By virtue
of an order of the Family Court, parental responsibility for Billy vests in
Bob, Bob’s sister Penny, and Penny’s partner Veronica.

Mary,
Bob, Penny and Veronica are therefore parents of Billy for the purposes of
section 16.

Martha
commits an act of domestic violence towards Veronica.Veronica may now be able to obtain a
protection order against Martha as Martha is Billy’s mother and Veronica is
exercising parental responsibility within the meaning of the terms of the
Family Law Act in section 16(1)(b) of this Act.By section 15(3): “It is
irrelevant whether there is or was any relationship between the parents of the
child.”

This
example demonstrates why it is necessary to ensure that parties make full
disclosure of the existence of orders under the Family Law Act or under the
Child Protection Act.

Engagement
relationship

This
is defined under section 17:

“An
engagement relationship exists between 2 persons if the persons are or were
engaged to be married to each other, including a betrothal under cultural or
religious tradition.”

It
is a repeat of section 12A(1) of the 1989 Act.

Couple relationship

This
is defined under section 18:

“(1)
A couple relationship exists between 2 persons if the persons have or had a
relationship as a couple.

(2)
In deciding whether a couple relationship exists, a court may have regard to
the following—

(a)
the circumstances of the relationship between the persons, including, for
example—

(i)
the degree of trust between the persons; and

(ii)
the level of each person’s dependence on, and commitment to, the other person;

(b)
the length of time for which the relationship has existed or did exist;

(c)
the frequency of contact between the persons;

(d)
the degree of intimacy between the persons.

(3)
Without limiting subsection (2), the court may consider the following factors
in deciding whether a couple relationship exists—

(a)
whether the trust, dependence or commitment is or was of the same level;

(b)
whether 1 of the persons is or was financially dependent on the other;

(c)
whether the persons jointly own or owned any property;

(d)
whether the persons have or had joint bank accounts;

(e)
whether the relationship involves or involved a relationship of a sexual
nature;

(f)
whether the relationship is or was exclusive.

(4)
A couple relationship may exist even if the court makes a negative finding in
relation to any or all of the factors mentioned in subsection (3).

(5)
A couple relationship may exist between 2 persons whether the persons are of
the same or a different gender.

(6)
A couple relationship does not exist merely because 2 persons date or dated
each other on a number of occasions.”

This
is slightly different to section 12A(2) and to (5) of the 1989 Act which
provides as follows:

“12A
What is an intimate personal relationship

(2)
Also, an intimate personal relationship exists between 2 persons, whether or
not the relationship involves or involved a relationship of a sexual nature,
if--

(a)
the persons date or dated each other; and

(b)
their lives are or were enmeshed to the extent that the actions of 1 of them
affect or affected the actions or life of the other.

(3)
In deciding whether an intimate personal relationship exists under subsection
(2), a court may have regard to the following--

(a)
the circumstances of the relationship, including, for example, trust and
commitment;

(b) the length of
time for which the relationship has existed or did exist;

(c)
the frequency of contact between the persons;

(d)
the level of intimacy between the persons.

(4)
An intimate personal relationship may exist whether the 2 persons are the same
or the opposite sex.

(5)
The lives of 2 persons are not enmeshed merely because the persons date or
dated each other on a number of occasions.”

The
significance of the changes include:

·It
is possible, to have a cyber relationship that would be covered under the Act
where the parties live in different parts of the State, have never met but have
had daily contact on Facebook, Twitter, text message and by phone. It was
problematic as to whether that could happen under the old s.12A

·The
reference to “enmeshment” which was always a struggle to determine as to
whether or not someone was in an intimate personal relationship with someone
else, has been removed.

·The
shopping list has been lengthened.

·Even
if none of the items in the shopping list have been satisfied, there may still
be the relationship.

Family relationship

This
is defined under section 19:

“(1)
A family relationship exists between 2 persons if 1 of them is or was the
relative of the other.

(2)
A relative of a person is someone who is ordinarily understood to be or to have
been connected to the person by blood or marriage.

•
the person who would be the individual’s mother-in-law if the individual was
still in a spousal relationship with the person’s son or daughter

•
the person who would be the step-parent of the individual if the spousal
relationship between the person and the person’s former spouse, the
individual’s parent, had not ended

•
the individual’s step-siblings when the parent they do not have in common has
died

(3)
For deciding if someone is connected by marriage, any 2 persons who are or were
spouses of each other are considered to be or to have been married to each
other.

(4)
A relative of a person (the first person) is also either of the following
persons if it is or was reasonable to regard the person as a relative
especially considering that for some

people
the concept of a relative may be wider than is ordinarily understood—

(a)
a person whom the first person regards or regarded as a relative;

(b)
a person who regards or regarded himself or herself as a relative of the first
person.

Examples
of people who may have a wider concept of a relative—

•
Aboriginal people

•
Torres Strait Islanders

•
members of certain communities with non-English speaking

backgrounds

•
people with particular religious beliefs

(5)
In deciding if a person is a relative of someone else—

(a)
a subsection of this section must not be used to limit another subsection of
this section; and

(b)
each subsection is to have effect even though, as a result, a person may be
considered to be a relative who would not ordinarily be understood to be a
relative.”

It
is the same as the definition under the 1989 Act in section 12B.

Informal care
relationship

This
is provided for under section 20:

“(1)
An informal care relationship exists between 2 persons if 1 of them is or was
dependent on the other person (the carer) for help in an activity of daily
living.

Examples
of help in an activity of daily living—

• dressing or other personal
grooming of a person

• preparing a person’s meals or
helping a person with eating meals

• shopping for a person’s
groceries

• telephoning a specialist to
make a medical appointment for a person

(2)
An informal care relationship does not exist between a child and a parent of a
child.

(3)
An informal care relationship does not exist between 2 persons if 1 person
helps the other person in an activity of daily living under a commercial
arrangement.

Example
for subsection (3)—

The
relationship between a person and a nurse who visits the person each day to
help with bathing and physiotherapy is not an informal care relationship
because the nurse visits the person under a commercial arrangement made between
the person and the nurse’s employer.

(4)
For subsection (3)—

(a)
a commercial arrangement may exist even if a person does not pay a fee for the
help provided under the arrangement; and

Example
for paragraph (a)—

The
provision of help by a voluntary organisation for which a person does not pay a
fee may still be under a commercial arrangement.

(b)
an arrangement is not a commercial arrangement because 1 person receives a
pension or allowance, or reimbursement for the purchase price of goods, for the

help
provided under the arrangement; and

(c)
an arrangement is not a commercial arrangement if 1person pays a fee for the
help provided under the arrangement because of domestic violence committed by
the other person.”

There
is no change between that definition and the definition under section 12 of the
1989 Act.

Ground 2: Domestic
violence

Minister
Struthers stated in the second reading speech:

“A
significant area of reform is the definition of domestic violence contained in
the bill. The definition of domestic violence has significant implications for
how this type of violence is identified and treated by police, the courts,
support services and the community. To enable effective responses to domestic
and family violence in Queensland, the bill includes a wider and more
contemporary definition of domestic violence. A contemporary understanding of
domestic violence refers to a person being subjected to an ongoing pattern of
abusive behaviour by an intimate partner or family member. This behaviour is
motivated by a desire to dominate, control and oppress and to cause fear.
Although any act of aggression in a relationship is unacceptable, domestic
violence refers to this particular type of abuse.It is this type of abuse that is the focus of
the bill.

The
definition of domestic violence included in the bill is wider than the
definition in the current domestic violence laws. It includes behaviour that is
physically or sexually abusive; emotionally, psychologically or economically
abusive; threatening or coercive; or behaviour that in any other way controls or
dominates another person causing fear. By including this wider definition, the
breadth of behaviours used to control and dominate in a relationship
characterised by domestic violence will be captured. This means that police,
magistrates, lawyers and members of the public will be more readily able to
identify situations where domestic violence has occurred. This change is
consistent with the views expressed during consultation and with the
recommendations made by the Australian Law Reform Commission in its report
Family violence—a national legal response released in November 2010.”

The
explanatory notes state:

“Definition
of domestic violence

The
Domestic and Family Violence Protection Act 1989 currently defines domestic
violence through a series of specific behaviours, including wilful injury,
wilful damage of property, intimidation or harassment of a person, and indecent
behaviour without a person’s consent.

The
definition of ‘domestic violence’ set out in clause 8 of the Bill reflects the
contemporary understanding of domestic violence, and includes behaviour that is
physically or sexually abusive, emotionally, psychologically or economically
abusive, threatening or coercive, or behaviour that in any other way controls
or dominates another person causing fear.

This
definition takes account of recommendations made by the Australian Law Reform
Commission in its Family Violence – A National Legal Response report, released
in November 2010, current research, feedback from consultation and definitions used
in other jurisdictions.

The
definition of domestic violence is contained in section 8 which provides:

Meaning of domestic violence

" (1) Domestic violence means behaviour
by a person (the first person)
towards another person (the second
person) with whom the first person is in a relevant relationship
that—

(a) is
physically or sexually abusive; or

(b) is
emotionally or psychologically abusive; or

(c) is
economically abusive; or

(d) is
threatening; or

(e) is
coercive; or

(f) in any
other way controls or dominates the second person and causes the second person
to fear for the second person’s safety or wellbeing or that of someone

else.

(2) Without
limiting subsection (1), domestic violence includes the following behaviour—

(a) causing
personal injury to a person or threatening to do so;

(b)
coercing a person to engage in sexual activity or attempting to do so;

(c)
damaging a person’s property or threatening to do so;

(d)
depriving a person of the person’s liberty or threatening to do so;

(e)
threatening a person with the death or injury of the person, a child of the
person, or someone else;

(f)
threatening to commit suicide or self-harm so as to torment, intimidate or
frighten the person to whom the behaviour is directed;

(g) causing
or threatening to cause the death of, or injury to, an animal, whether or not
the animal belongs to the person to whom the behaviour is directed, so as to
control, dominate or coerce the person;

(h)
unauthorised surveillance of a person;

(i)
unlawfully stalking a person.

(3) A
person who counsels or procures someone else to engage in behaviour that, if
engaged in by the person, would be domestic violence is taken to have committed
domestic violence.

(4) To
remove any doubt, it is declared that, for behaviour mentioned in subsection
(2) that may constitute a criminal offence, a court may make an order under
this Act on the basis that the behaviour is domestic violence even if the
behaviour is not proved beyond a reasonable doubt.

(5) In this
section—

coerce, a person,
means compel or force a person to do, or refrain from doing, something.

unauthorised surveillance, of a
person, means the unreasonable monitoring or tracking of the person’s
movements, activities or interpersonal associations without

the
person’s consent, including, for example, by using technology.

unlawful
stalking see the
Criminal Code, section 359B.”

The
definition is very similar to the definition of “family violence” to take
effect in June 2012 as set out above under the Family Law Act.

The
definition of “domestic violence” is significantly wider, at first blush, than
the definition under the 1989 Act.

Comment:
Physically abusive is considerably
different from wilful injury as the
former does not require actual injuries.

Sexually
abusive.

Indecent
behaviour to the other person without consent.

Emotionally
abusive.

Intimidation
or harassment.

Psychologically
abusive.

Intimidation
or harassment.

Economically
abusive.

No
direct comparison unless it was able to be shown to have been intimidation or
harassment.

Threatening.

Threat
to commit wilful injury, wilful damage, intimidation or harassment or
indecent behaviour to the other person without consent; or intimidation.

Coercive.

Intimidation.

In any other way
controls or dominates the second person and causes the second person to fear
for the second person’s safety or wellbeing or that of someone else.

No
direct comparison, although it may be intimidation, harassment or threat.

Examples under section 8(2)

New

Old

Causing
personal injury to a person or threatening to do so.

Wilful
injury or threat to commit that act.

Coercing
a person to engage in sexual activity or attempting to do so.

This
was problematic as the previous definition required “without consent”,
whereas the consent may have been given under coercion. Coercive behaviour
may have been intimidation or harassment.

Ground 3: Necessary
or desirable

The
explanatory notes state:

The
current grounds of which a court must be satisfied in determining whether or
not to make a protection order are that:

•an act of domestic violence has
occurred;

•a domestic relationship exists; and

•the person who committed domestic
violence is likely to commit domestic violence again or, if the act of domestic
violence was a threat, that the person is likely to carry out the threat.

The
Bill replaces the ‘likelihood’ element with a requirement that a court be
satisfied that an order is necessary or desirable to protect an aggrieved from
domestic violence. This change focuses
the court on the protective needs of the aggrieved and whether imposing
conditions on the respondent’s behaviour is necessary or desirable to meet
these needs. The court may still consider evidence which suggests that domestic
violence may occur again, or a threat may be carried out, however the court
does not need to be satisfied that such an event is ‘likely’. Further, a court
can look at other factors, including whether an aggrieved is in fear, when it
is determining this element.

The new grounds also require a
court to consider the guiding principles in deciding whether an order is
necessary or desirable for the protection of the aggrieved. The priority of the
Bill is the safety and wellbeing of the aggrieved and the grounds for making a
protection order are directed toward achieving this aim.
These measures are also consistent with the objective of ensuring that orders
are only made for the benefit of the person who is in need of protection and
are intended to reduce inappropriate cross applications and cross-orders.”(emphasis added)

There
is also a qualifier contained in section 37(2):

“(2In deciding whether a protection order is
necessary or desirable to protect the aggrieved from domestic violence, the court—

(a)must consider the principles mentioned in
section 4; and

(b)may consider whether a voluntary
intervention order has previously been made against the respondent and whether
the respondent has complied with the order.”

A
voluntary intervention order requires the respondent to attend a perpetrator’s
program but the court may only make or amend a voluntary intervention order if
the respondent:

A.is present in court; and

B.agrees to the order being made or amended;
and

C.agrees to comply with the order as made
or amended .

Minister
Struthers stated in the second reading speech:

“Intervention
order

The
Bill also provides for an order to be made requiring a respondent to attend an
approved intervention program or counselling.The current Act provides a broad power for courts to impose conditions
that the court considers necessary and desirable in the interests of the
aggrieved, any named person and the respondent. It is not clear whether this
power extends to ordering a respondent to attend a program or counselling.The Bill provides a clear power for the court
to make an order requiring a respondent to attend an approved intervention
program or counselling.”

Who can a domestic violence order
protect?

There
is greater clarification as to who is protected.Section 24 provides:

“(1) As well as the aggrieved, the following persons can be

protected by a domestic violence order—

(a) a child of the aggrieved;

(b) a child who usually lives with the aggrieved;

(c) a relative of the aggrieved;

(d) an associate of the aggrieved.

(2) A child
who usually lives with the aggrieved means a child who spends time at the residence of the aggrieved on
a regular or on-going basis.

(3) An associate
of the
aggrieved means either of the following persons if it is reasonable to regard
the person as an associate—

(a) a person whom the aggrieved regards as an associate;

(b) a person who regards himself or herself as an associate of the
aggrieved.

Examples of persons who could be associates of the aggrieved—

•
a person who is the current spouse or partner of the aggrieved

•
a person who works at the same place as the aggrieved

•
a person who lives at the same place as the aggrieved

•
a person who provides support or assistance to the aggrieved,

including,
for example, a friend or neighbour

(4) A person mentioned in subsection (1) is protected by being specifically
named in the domestic violence order under section 52 or 53.

(5) The person may be specifically named in the domestic violence
order when it is made or at a later time if it is varied.

(6) The
specifically named person is called a named
person.”

The
new section 24 specifically refers to “child of the aggrieved” and “the child
who usually lives with the aggrieved”.

Example of a child who usually
lives with the aggrieved

Fred
and Ethel are married.It is their
second marriage.Ethel was previously
married to Ricky.Ethel and Ricky have
a child, Lucy.Due to the long
distance between Ricky and Ethel, Lucy lives with Ricky full time, but spends
her holidays with Fred and Ethel.If
Fred were the aggrieved, then Lucy is the child who usually lives with the
aggrieved as she “spends time at the residence” of Fred and Ethel “on a regular
or on-going basis”.

The
explanatory notes state as to naming children on orders:

“Currently,
the Domestic and Family Violence Protection Act 1989 does not provide any
specific guidance to a court when it is considering whether to include a child
as a named person on a domestic violence order. When a person, including a
child, is named on an order, the respondent’s behaviour towards the named
person is subject to the conditions which relate to that person. The general
requirements for including a relative or associate on an order apply, and these
refer to the occurrence, or likely occurrence, of an act of ‘associated
domestic violence’, which is violence directed at a relative or associate.

The
effects on children of witnessing or being exposed to domestic violence are
well documented and can include medium and long term psychological harm. The
Bill includes specific considerations for including children on orders which
include whether naming the child is necessary or desirable to protect the child
from being exposed to domestic violence.

What
it means for a child to be ‘exposed’ to domestic violence is defined in clause
10 as the child seeing or hearing, or otherwise experiencing the effects of
domestic violence committed by a respondent. A non-exhaustive list of examples
of being exposed to domestic violence is set out in the provision.”

·A
person acting under another Act for the aggrieved, for example a guardian for a
personal matter or an attorney for a personal matter.

There
is no substantive change to these provisions as compared to section 14 of the
1999 Act.

Temporary protection orders

Section
27 sets out the bases for making temporary protection orders:

·Police
officer applies for a temporary protection order.

·The
applicant has sought a temporary ex-parte variation.

·The
applicant for a protection order has sought an ex-parte order.

·There
is the adjournment of the hearing of an application for a protection order.[20]

·The
court adjourns the hearing of an application for a variation of a domestic
violence order.[21]

·The
court adjourns the making of a protection order on its own initiative in
sentencing proceedings.[22]

·The
court adjourns Children’s Court proceedings in which the court on its own
initiative makes a protection order.[23]

The
test is essentially the same as under the 1989 Act.The court has to be satisfied before it makes
a temporary protection order that:

·A
relevant relationship exists between the aggrieved and the respondent; and

·That
the respondent has committed domestic violence against the aggrieved.

However,
neither of these is required if a temporary protection order is sought as part
of a variation of an existing protection order presumably because a court would
have been satisfied previously about a relevant relationship existing and that
presumably the purpose of the order is to prevent further acts of domestic
violence occurring when there is already an order prohibiting acts of domestic
violence.The evidence required for
obtaining a temporary protection order is only “that the court considers
sufficient and appropriate having regard to the temporary nature of the order” [24]
which is a repeat of the requirement under the 1989 Act[25].

The
test for temporary protection orders in variation applications is that the
court must be satisfied “that the temporary protection order is necessary or
desirable to protect the aggrieved, or another person named in the domestic
violence order, from domestic violence, pending a decision on the application
for the variation.”[26]

1.The
respondent must be of good behaviour and must not commit domestic violence or associated
domestic violence.

2.If
a child of the aggrieved, or a child who usually lives with the aggrieved, is a
named person in the order, the respondent must not expose the child to domestic
violence.

Service of applications

An
application for a protection order must be personally served by a police
officer on the respondent.[28]

Cross applications

The
courts will have the ability if an application is made in one court and a cross
application is filed in another court to transfer the matter to the other court
or to hear both applications together.[29]

There
will still be the requirement to serve the cross application at least one
business day before the day of the hearing of the original application;[30]
remembering that service now must be effected by police.[31]

Minister
Struthers stated in the second reading speech about cross applications:

“The
Bill’s objective is to ensure that victims of domestic and family violence are
provided with protection against future acts of domestic violence. One of the
issues I have been particularly interested in addressing in the Bill is the
concerning number of cross-applications that come before the court under the
current legislation. This is where each party to a matter alleges domestic
violence against the other.

During
consultation, stakeholders reported a disproportionate number of
cross-applications and expressed the concern that in many instances domestic
violence orders are made against both people involved.This is inconsistent with an understanding of
domestic violence that comprises one person being subjected to an ongoing
pattern of abuse by another person who is motivated by the desire to dominate
and control them. It is not reasonable to accept, except in exceptional
circumstances, that both people in a relationship can be a victim and
perpetrator of this type of violence.For example, violence used in self-defence and to protect children can
be misconstrued as domestic violence if a broader view of the circumstances is
not taken.

It
is disturbing that legislation with the purpose of providing for the safety of
victims of domestic violence appears to be used, in some instances, to further
victimise vulnerable Queenslanders. Often in these circumstances, victims of
violence consent to orders against them to avoid further court appearances or
the prospect of a hearing which will require them to give evidence before the
court. This is contrary to the purpose of the laws and does not provide a fair
outcome to victims.

As
a result of this feedback, the Bligh Government is refocusing the law to ensure
that the person most in need of protection is identified.This will be achieved by including guidance
in the principles for administering the Act. As mentioned earlier, the Bill
provides for an overarching principle that the safety, protection and wellbeing
of people who fear or experience domestic violence is paramount.

One
of the five principles that sit under the priority principle is that, where
there are conflicting accounts of domestic violence or indications that both
people in a relationship are committing acts of violence, including for their
self-protection, the person who is most in need of protection should be
identified.

A
further measure to reduce the number of cross-applications is included in the
provisions relating to the making of police protection notices. The Bill does
not permit cross-notices being issued. It is likely that this provision will
reduce the number of cross-orders that are ultimately made.”

Changes with ex-parte orders

There
is a significant changes as to the test required in obtaining ex-parte
orders.It is expected that it will be
considerably easier to obtain them.Under the 1989 Act, the requirement was that it appeared to the court:

(a)The
aggrieved or a named person is in danger of personal injury; or

(b)Property
of the aggrieved or a named person is in danger of substantial damage.

From
talking to various domestic violence advocates, it appears that different
magistrates had different views of that section.Some followed it literally.Others were much more liberal in making
temporary protection orders on an ex-parte basis.

The
new test will merely be whether the court “is
satisfied that the making of a temporary protection order despite the
respondent having not been served with the application is necessary or
desirable to protect the aggrieved, or another person named in the application,
from domestic violence”.[32]

Consent orders

Under
the 1989 Act there has been a controversy between the views of some magistrates
that before a consent order can be made the magistrate must be satisfied, based
on the application before him or her that an act or a number of acts of
domestic violence have occurred and that, therefore, further acts are likely;
and the views of other magistrates that because the form has been agreed to
then that is all that is required.[33]

There
has also been differing practice as to whether or not orders can be made on a
“without admission” basis.Some magistrates
from my experience have readily done so and others have refused, saying that it
is not provided for in the legislation.

There
will now be two requirements:

1.There
is a consent of the parties to the making of an order or the parties do not
oppose the making of the order.

2.The
court must be satisfied the relevant relationship exists between the aggrieved
and the respondent.[34]

Significantly
the court does not need to be satisfied that there have been acts of domestic
violence or that the protection order is necessary or desirable to protect the
aggrieved from domestic violence.[35]
This may be significant for those with proceedings under the Family Law Act, or those who may have
issues under the Migration Regulations.

The
form of order can be made “whether or not
the respondent admits to any or all of the particulars of the application”.[36]

The
order cannot be consented to by an aggrieved when it is a police application
unless the aggrieved is not present in court and cannot, after all reasonable
enquiries, be contacted to give consent and the applicant police officer
reasonably believes that the order promotes the safety, protection and
wellbeing of the aggrieved, and any named person or any child affected by the
order.[37]Children and associates will be named
separately.[38]The court can conduct a hearing in relation
to the particulars of the application before making a consent order;[39]
and may refuse to make or vary an order if it believes in doing so “may pose a risk to the safety of an
aggrieved, any named person, or any child affected by the order”.[40]

The
test in relation to associates is that naming the relative or associate “is necessary or desirable to protect the
relative or associate from associated domestic violence”.[41]The test in relation to children is that:

“naming
the child in the order is necessary or desirable to protect the child from –

(a)Associated domestic violence; or

(b)Being exposed to domestic
violence committed by the respondent.”[42]

The
test under the 1989 Act was that the associate had either been subject to
domestic violence or that it was “likely”.
The change in words here is significant. The criticism of domestic violence
advocates of some magistrates was that even in cases where the respondent had
punched the aggrieved in the face when the aggrieved was holding the baby, it
was not “likely” that the baby would be subjected to associated domestic
violence. Clearly under this test it would be necessary or desirable to protect
the child from being exposed to domestic violence.

There
will now be a requirement upon the court to enquire as to whether there are any
children, irrespective of whether their names are mentioned in the application.[43]The clear inference from the legislation is
an intention wherever possible for children to be named.

There
is also the requirement to obtain information from the Department of
Communities (Child Safety Services) if the respondent contests the naming of
the child in the order or the imposition of any conditions concerning the
child.[44]

If
there is a named person who is an adult there is a standard condition that the
respondent is to be of good behaviour towards and not commit associated
domestic violence against them.[45]If there is a named person who is a child the
standard condition is to be of good behaviour towards the child, not commit
associated domestic violence against the child and not expose the child to
domestic violence.[46]

Other conditions

The
court may impose any other condition the court considers necessary in the
circumstances and desirable and interest to the aggrieved, any named person or
the respondent.[47]The principle of paramount importance to the
court must be the principle of the safety, protection and wellbeing of people
who fear or experience domestic violence, including children, are paramount.[48]

The
test of “necessary” and “desirable” is identical to that under the 1989 Act
(section 25(2)).The paramount
importance test has changed.The 1989 Act
requirement is:

“The
following matters are to be of paramount importance to the court when it
imposes conditions on the respondent –

There
are similar example conditions set out under the new Act as there were under
the 1989 Act.Sections 58, 59; section
25 1989 Act.

However,
there are changes:

The
“no contact” provision under the 1989 Act allowed a lawyer to contact the
aggrieved or named person or another person, including a lawyer to locate the
aggrieved or named person for a purpose authorised by an Act.[50]

It
has not been uncommon for solicitors to write letters on behalf of a respondent
to the aggrieved seeking contact between the respondent and the children.To do so when there is a “no contact” order
would appear to be an offence unless there were proceedings of some kind on
foot at that time.This is because the
definition of “lawyer” in section 60:

“means
a lawyer who has represented the respondent in relation to a proceeding.”

In
other words, if there are no proceedings on foot of any kind, then the lawyer
making contact with the aggrieved when there is a “no contact” clause against
the respondent may be a party to an offence, e.g., aiding and abetting the
breach of a no contact order by his or her client.

There
is the ability for a victim advocate to contact the aggrieved or named person.[51]

It
is essential in my view that standard no-contact clauses issued by magistrates
under the new Act have a standard exception for contact via lawyers, so that
matters to do with children and property settlement can be negotiated without
the necessity of commencing proceedings, perhaps prematurely.

No contact clauses between
parents and children

There
will now be a requirement that the condition:

“must limit contact between the respondent and
the child only to the extent necessary for the child’s safety, protection and
wellbeing”.

Note – In considering whether to
impose a condition, under section 57(2), the principle of paramount importance
to the court must be the principle of the safety, protection and wellbeing of
people who fear or experience domestic violence, including children, are
paramount.”[52]

There
is now the ability to provide for an order for the protection of an unborn
child to take effect on the birth of the child.[53]
The explanatory notes state:

“This
condition will enable a court to make an order for the protection of an unborn
child where an aggrieved is pregnant at the time a domestic violence order is
made. The condition takes effect when the child is born. This is to address the
concern that an aggrieved does not have the capacity to apply for a variation
of an order to include, as a named person, a recently born child in the period
of time immediately following his or her birth. This period of time can be a
time where an aggrieved and a new born child are particularly vulnerable.”

Ouster orders

In
addition to any other conditions that the court considers, the court needs to
consider the following:

(a)Whether
the aggrieved and any child living with the aggrieved can continue to live
safely in the residence if the ouster condition is not made;

(b)The
desirability of preventing or minimising disruption to the aggrieved and any
child living with the aggrieved, including by minimising disruption to their
living arrangements allowing them to continue, or return, to live in the
residence;

(c)The
importance of the aggrieved and any child living with the aggrieved being able
to maintain social connections and support that may be disrupted or lost if
they can not live in the residence;

(d)The
need to ensure continuity and stability in the care of any child living with
the aggrieved;

(e)The
need to allow child care arrangements, education, training and employment of
the aggrieved and any child living with the aggrieved to continue without
interruption;

(f)The
particular accommodation needs of the aggrieved and any child who may be
affected by the ouster condition;

·accommodation needs that relate
to the number, or age, of the children who require accommodation.[54]

The
court must give reasons for imposing or not imposing the condition.[55]The court can impose a return condition[56]
and consideration needs to be given as to whether police need to attend to
supervise.[57]

Minister
Struthers stated in the second reading speech:

“Ouster
condition

The
Bill includes greater guidance for the court when considering whether to make
ouster conditions. The court will also be required to provide reasons if it
does not impose an ouster condition when it is sought.

Ouster
conditions prevent a respondent from remaining at, entering or attempting to
enter certain premises. This may include premises where the respondent and the
aggrieved live or lived together, or where the aggrieved or a named person
lives, works or frequently goes. The ouster condition can also apply to
premises in which the respondent has a legal interest, such as a property owner
or tenant.

Exposure
to, or fear of, domestic violence is a leading cause of homelessness. It is
easier to find accommodation for a single person than for a mother and
children. The Bill increases the clarity about the considerations for the court
in order to ensure that ouster conditions are made safely, to protect victims
of violence.

The
other important feature of ouster provisions is that disruption is minimised
for the victim of violence. This extends further than living arrangements and
includes people’s social and community connections. Maintaining connections and
supports can be critical to the ability of victims of violence, including
children, to recover after the experience of living with, or being exposed to,
domestic violence.”

The
explanatory notes state:

“The Bill proposes that a court can issue an
ouster condition that prevents a respondent from remaining at premises,
entering or attempting to enter premises, or approaching within a stated
distance of premises (clause 63(1)). This condition can apply to premises in
which the respondent has a legal or equitable interest, or where the aggrieved
and respondent live or have lived together (clause 63(2)).

The
making of an ouster condition impacts on the rights and liberties of an
individual.

The
effect of an ouster condition is largely carried over from the provisions of
the Domestic and Family Violence Protection Act 1989 (sections 25 and 25A).
Additional guidance is provided in the Bill about the matters that are to be
considered by a court when it is deciding whether to make an ouster condition
(clause 64(2)). Also, clause 64(3) requires a court to give reasons for
imposing or not imposing an ouster condition when one is sought.

The
overriding consideration for the court in deciding whether to impose any
condition, including an ouster condition, is that the safety, protection and
wellbeing of people who fear or experience domestic violence, including
children, are paramount. Further, the court only considers whether to impose
conditions on a respondent after first deciding that the respondent has
committed domestic violence against the aggrieved.

The
matters to be considered by a court include a number of matters specific to the
needs of the aggrieved and any child living with the aggrieved (clause 64(2)(a)
to (f)) and the accommodation needs of the respondent (clause 64(2)(g)). By
setting out these specific considerations, the court will have increased
guidance on matters relevant to the safety, welfare and wellbeing of the
aggrieved and any children of the aggrieved in imposing an ouster condition,
while retaining the need to consider the accommodation needs of the respondent.

Although
the Bill does not prevent an ouster condition being made in the absence of
notice to a respondent, this should only occur in situations where a temporary
order is sought on an urgent basis before there is an opportunity to serve a
respondent (clause 47). The ouster condition only becomes enforceable once the
respondent is served. The respondent will have the opportunity to present
submissions to the court at the next return date.

The
considerations included in the ouster provisions enable the court to balance
considerations relevant to the safety and welfare of the aggrieved and any
children of the aggrieved with the accommodation needs of the respondent. The
processes in the Bill for hearing matters ensure that a respondent is provided
with an opportunity to respond to an application for an ouster condition. In
addition, the requirement to provide reasons ensures there is transparency in
how the considerations have been applied in the decision-making process.”

Disclosure of family law orders

There
is a positive obligation to an applicant to disclose any family law order.[58]This is defined as any order, injunction,
undertaking, plan or recognisance mentioned in section 68R of the Family Law Act or the equivalent section
176 of the Family Court Act 1997 (WA).[59]Those orders are:

(a)A parenting order, to the extent
to which it provides for a child to spend time with a person, or expressly or
impliedly requires or authorises a person to spend time with the child; or

(b)A recovery order (as defined in
section 67Q) or any other order under this Act, to the extent to which it
expressly or impliedly requires or authorises a person to spend time with the
child; or

(c)An injunction granted under
section 68B or 114, to the extent to which it expressly or impliedly requires or
authorises a person to spend time with the child; or

(d)To the extent to which it
expressly or impliedly requires or authorises a person to spend time with the
child;

(i)an undertaking given to, and accepted
by, a court exercising jurisdiction under this Act; or

This
has been seen as a rarely used provision. This section of the Family Law Act enables magistrates to
make temporary, 21 day variations or suspensions of contact or residence
orders.It has proved very difficult at
times to persuade magistrates to exercise power under section 68R.Indeed, magistrates at times have not known
of the existence of section 68R.

There
is now a positive requirement before making or varying any domestic violence
order for the court to have regard to any family law order of which the court
has been informed and if there is any order by which contact may have been
ordered:

“consider whether to exercise its power, under theFamily Law Act 1975 (Cth), section 68R … to
revive, vary, discharge or suspend the family law order”.[61]

There
are two significant limitations on that power under section 68R:

·The
court must not diminish the standard of protection given by a domestic violence
order for the purpose of facilitating consistency with the family law order.[62]In other words, the court can decide to make
a protection order that is seemingly at odds with an order under the Family Law Act.

·The
court must give the parties to the proceeding a reasonable opportunity to
present evidence and to prepare and make submissions about the exercise of the
power,[63]
but that limitation does not apply if the court is deciding whether or not to
make an ex-parte temporary protection order.[64]

Variation applications

An
application for a variation may be made by:

·The
aggrieved;

·The
respondent;

·A
named person;

·An
authorised person for the aggrieved;

·A
person acting under another Act for the aggrieved, respondent or a named
person; or

A
named person may only seek variation in relation to the naming of that person
in the order or a condition relating to the named person.[67]

There
is no longer the requirement to serve the application on the Commissioner of
Police,[68]
but instead the Clerk of the Court gives a copy to the closest police station
“where the respondent lives or was last known to live”.[69]
Significantly, however, under section 95 a court must not vary a domestic
violence order unless it is satisfied that the Police Commissioner has been
given a copy. The Police Commissioner is notified by the Clerk of the
Courtwhich must occur within one
business day after the day of the application is made or an order is granted[70].

There
is a requirement that if the applicant is anyone other than the respondent the
application must be served by police on the respondent[71]
and if the application for a variation is the respondent it must be served on
the aggrieved and “any named person who is affected by the application for the
variation”[72]
which presumably would include the parties’ children.

Applicants for variation other
than the respondent may seek that the matter be heard ex-parte.[73]

The
court must consider whether a variation proposed to be made may adversely
affect the safety, protection or wellbeing of the aggrieved or any named
person. When considering whether to make the variation the court must have
regard to –

(a)An
expressed wish of the aggrieved or named person; and

(b)Any
current contact between the aggrieved or named person and the respondent; and

(c)Whether
any pressure has been applied, threat has been made, to the aggrieved or named
person by the respondent or someone else for the respondent; and

(d)Any
other relevant matter.

Length of protection orders

They
can continue to be made up to two years or for a longer period if there are
special reasons.[74]

Role of police/Police
protection notices

The
explanatory notes state:

“Police functions and powers

The
Bill includes some changes to the powers that police officers have when they
are responding to domestic violence incidents or dealing with people who have
committed acts of domestic violence. This will increase the capacity of the
police to provide quick and effective responses for victims of domestic
violence. These changes include:

•Obligation of police officer to
investigate domestic violence: The Domestic and Family Violence Protection Act
1989 places an obligation on a police officer to investigate suspected domestic
violence and to take action, as appropriate, to respond. The Bill makes it
clear that this obligation is in
addition to a police officer’s responsibility to investigate a criminal offence
and also includes a requirement for an officer to make a written record of his
or her reasons for not taking any action after an investigation.

•New power to issue a police
protection notice: A police protection notice is a short-term response to low
to medium-level domestic violence incidents that will provide immediate
protection to the aggrieved. A notice will act as an application to the court
for a protection order. A police protection notice also includes the option of
a 24 hour ‘cool-down’ condition, whereby the respondent to the notice is
required to leave a stated premises and not approach or contact the aggrieved
during the ‘cool-down’ period. A respondent who breaches a notice can be
charged with an offence which may result in up to 2 years imprisonment. Police
protection notices will be particularly effective in remote and rural areas
where courts sit less frequently.

•Police powers of detention: The
detention powers of police are to be used in high risk situations, where there
is a danger of injury to a person or damage to a person’s property. The
proposed changes will allow a person’s detention to continue for up to 8 hours
while a person is intoxicated and incapable of understanding the requirements
of an order, application, or release conditions, and for up to 4 hours where a
person’s demeanour may present an ongoing danger of injury or property damage.
Police officers will also have the ability to apply to a magistrate for an
extension of the initial four hour detention period for a further four hours in
limited circumstances. The detention powers are subject to strict requirements
and include obligations to record particulars about the detention in the
enforcement acts register that is required to be kept under the Police Powers
and Responsibilities Act 2000.

•Power to require a respondent to remain
for the purpose of service:

This
power will enable police to require a person named as a respondent to an
application or order to remain at a location for the time reasonably necessary
for the police officer to serve the respondent or advise the respondent of the
conditions of an order if the officer does not have a copy of the order. This
power will also apply while a police protection notice is issued and served.
This will improve the safety of victims of domestic and family violence by
increasing the opportunities for police to ensure that service requirements are
met which means that protection orders can be made by the court and domestic
violence orders can be enforced.”(emphasis
added)

In
addition to taking the respondent into custody at the scene, the police can,
instead, issue a notice at the scene naming the respondent as a respondent,
stating that the respondent must be of good behaviour towards the aggrieved and
must not commit domestic violence against the aggrieved and have a cool-down condition
lasting not greater than 24 hours prohibiting the respondent from doing any or
all of the following:

(a)Entering,
attempting to enter, or remaining at, stated premises, or approach within the
stated distance of stated premises;

(b)Approaching,
attempting to approach, within a stated distance of the aggrieved;

(c)Contacting,
attempting to contact, or asking someone else to contact, the aggrieved.[75]

If
police issue a police protection notice that includes a cool-down condition,
police must consider the accommodation needs of the respondent and take any
reasonable steps necessary to ensure the respondent has access to temporary
accommodation.[77]A police protection notice is taken to be an
application for a protection order made by a police officer.[78]If there is a conflict between a police
protection notice and an existing domestic violence order and it is not
possible for the respondent to comply with both, the existing domestic violence
order prevails.[79]

Taking respondents into custody

Police
will still have the power to do so for up to 8 hours;[80]
but during which time police cannot question the respondent about their
involvement in the commission of an offence or suspected offence.[81]Police can obtain an extension of the period
of detention but the application to the court must be made in a way that gives
the respondent or the respondent’s lawyer “a reasonable opportunity to prepare
and make submissions”.

The
extended period of detention in any case is limited to 8 hours.[82]

There
is still legality for police to obtain temporary orders by fax or phone.[83]

Police
will now be able to require a respondent to stay at a place for up to an hour
or “a longer reasonably necessary time, having regard to the particular
circumstances” to await service of an application for a protection order, a
protection order or a police protection notice; it being an offence not to comply
with the direction unless the person has a reasonable excuse.[84]However, the great limitation on this power
is that:

“A
police officer must remain in the presence of the person while the person remains
at the appropriate place.”[85]

Court proceedings

The
UCPR apply:

“only
to the extent that –

(a)this Act expressly states that a
rule applies; and

(b)the application of the rule is
not inconsistent with this Act.”[86]

Section
142(2) sets out provisions of the UCPR that apply, set out below:

Provision that applies

Summary

Chapter
1 preliminary including Rule 5(3)

“In a
proceeding in a court, a party impliedly undertakes to the court and to the
other parties to proceed in an expeditious way.”

Rule
5(4)

“The
court may impose appropriate sanctions if a party does not comply with these
Rules or an order of the court.”

Rule 8

Starting
proceedings.

Rule
13

Proceeding
incorrectly started by claim instead of application.

Rule
32

Oral
applications may be made including to impose conditions required in the
interests of justice to prevent prejudice to the other parties.

Rule
94

Who
may be a litigation guardian.

Rule
95

Appointment
of litigation guardian.

Rule
100

Definitions
for service chapter.

Rule
102

DX may
be used subject to a practice direction from the Chief Justice.

Rule
103

Service
to occur the same day has to occur by 4pm.

Rule
106

Manner
of personal service.

Rule
109

Personal
service: persons with impaired capacity.

Rule
110

Personal
service: prisoners.

Rule
112

How
ordinary service is performed.

Rule
116

Substituted
service.

Rule
117

Informal
service.

Rule
120

Affidavit
of service.

Rule
121

Identity
of person served.

Rule
122

Special
requirements for service by fax.

Chapter
4, Part 6

Rule
123 Service outside Queensland, ie in accordance with the Service and
Execution of Process Act 1992.

Chapter
4, Part 7

Ordinary
service outside Australia.

Chapter
11, Part 4, other than Rules 417, 418 and 419 subpoenas.

Rule
417 An order for the payment of any loss or expense incurred in complying
with the subpoena.

There
remain the same limitations on issuing subpoenas to children to produce
documents or compelling them to be witnesses.[91]

Protected witnesses

If
the aggrieved, a child, or a relative or associate of the aggrieved who is
named in the application that relates to the proceeding gives evidence, the
court must consider whether to make any of the following orders:

(a)That
the particular witness give evidence outside the courtroom by use of an AV
link;

(b)That
the protected witness give evidence outside the courtroom and be recorded, then
replayed in the courtroom;

(c)That
a screen or one way glass can be placed so that the protected witness cannot
see the respondent;

(d)While
the protected witness is giving evidence that the respondent be in another room
with access to an AV link;

(e)That
the protected witness have a support person;

(f)Accommodate
the protected witness in such a way to minimise his or her distress if he or
she has a physical or mental disability; and

If
a child is the protected witness then there are mandatory requirements.[93]

Similarly
if the respondent is self-represented the court may order that the respondent
not cross examine the protected witness in person.If the court is satisfied that the cross
examination is likely to cause a protected witness to:

(a)Suffer
emotional harm or distress; or

(b)Be
so intimidated as to be disadvantaged as a witness,

and if the protected witness is a
child the court must make an order that the respondent may not cross examine in
person.[94]

Subpoenas

Instead
of summonses under the 1989 Act, the
court may issue subpoenas.[95]

Those
costs orders are made against the applicant.The significant change is a requirement that the court must “hear” and “decide to dismiss” on one of the four stated grounds.There was not previously the stated requirement
to “hear” and “decide”.[98]

There
has been some controversy as to whether or not magistrates can award
substantial costs in cases where an application meets one of the four statutory
criteria.Some magistrates have been of
the view that the provisions of the UCPR apply and that therefore substantial
costs orders can be made.Other
magistrates have been of the view that the provisions of the Justices Act apply and therefore there
is a very limited costs making power, namely $1,500 when instructions of
preparation for the hearing including attendance on day one of the hearing, up
to $250 for other court attendances other than the hearing of the complaint, and
up to $875 for each day of the hearing after day one.[99]

It
would appear that the quantum of costs has been decided in favour of those who
follow the Justices Act view because
the 2012 Act, in adopting the Justices Act generally, does not
incorporate Chapter 17A of the UCPR which deals with costs.

Confidentiality

There
has been a repeat of the previous clauses relating to closed court and the
restriction on publication.[100]
However, there is a slight change to “publish” so that the legislation is no
longer identical to s.121 of the Family
Law Act, as the explanatory notes state:

“Publish
is defined in clause 159(3) in terms of publishing ‘to the public’.This is wider than the current meaning of
publish in section 82 of the Domestic and Family Violence Protection Act 1989,
which also refers to ‘a section of the public’. This means that the Bill does
not need to specify all of the exemptions that are referred to in the current
provision. The proposed definition of publish will not include a person who is
required to copy or forward documents to another person where this is
undertaken in the course of representing or assisting a person who is involved
in proceedings.

The
exceptions, set out in clause 159(2), include: circumstances where the court
orders publication; notices which are displayed in court; publication of
genuine research or in a recognised series of law reports, where individuals
are not able to be identified; or where consent has been obtained by the
individuals to whom the information relates.

It
is considered that these provisions effectively balance the need to protect
individuals from the publication of highly sensitive and personal information
and the need to facilitate the openness and accountability of court processes.
Court processes are still subject to scrutiny, through publication in
recognised law reports and genuine research, and also through the appeal
provisions in part 5, division 5 of the Bill. Further, a court has the
discretion to open a court in appropriate circumstances.”

There
is a general prohibition on supplying of copies of the court documents.[101]

Appeals

Appeals
are required to be filed within 28 days.[102]An appeal must be started on the evidence of
proceedings before the court that made the decision being appealed, however the
appellant court may order the appeal be heard afresh, in whole or part.[103]

Registration of interstate orders

These
can still be registered.

Offence of breach of order

Penalties
have been beefed up.Under the 1989 Act the maximum penalty is $4,000 or one year’s imprisonment but if the
respondent has previously been convicted on at least two different occasions of
an offence under that section within the last three years the maximum penalty
is two years.[104]

The
penalty will now be $6,000 or two years imprisonment but if an offence has been committed in the
last five years the maximum penalty is $12,000 or three years imprisonment.

The
new section 180 is significant.It
provides:

“180
Aggrieved or named person not guilty of offence

For the purposes of the Criminal Code, section 7, an aggrieved or
other person named in a domestic violence order, police protection notice or
release conditions, does not aid, abet, counsel or procure the commission of an
offence against section 177, 178 or 179, and is not punishable as a principal offender,
because the person encourages, permits or

The
purpose of section 180 is clear.It is
designed to ensure that aggrieveds are not charged as parties to an offence.

Example of
section 180:

Wilma
has obtained a protection order against Fred.The terms of the protection order include a “no contact” clause.Wilma phones Fred and leaves a message on
his voicemail asking him to phone her back.He does so.Fred commits a
breach of the protection order.Wilma
does not, even though she “encouraged,
permitted or authorised conduct” by Fred “that contravenes the domestic violence order”.

Limitation period

Offences
under the 1989 Act, as summary
offences, had to be prosecuted within one year of the offence being
committed.The 2012 Act says that the
proceedings must be started within a year after the offence is committed or
“one year after the commission of the offences comes to the complainant’s
knowledge, but within two years after the commission of the offence”.[105]

Conclusion

There
has been a comprehensive rewrite of what constitutes domestic violence. The
definitions under the Family Law Act and in the 2012 Act are complementary.

The
changes to the Family Law Act swing the balance much more in favour of
protection from violence.

As
Minister Struthers indicated, the 2012
Act is a substantial rewrite of the 1989
Act but it maintains the overall framework of the original
legislation.It continues to provide a
civil response to acts of domestic violence. The 2012 Act clearly emphasises that police have a duty to also
exercise their power to investigate any possible offences and if necessary charge.
It remains to be seen as to whether police will take up the challenge
consistently.

It
will, in my view, be considerably easier to have action taken against
perpetrators of violence, easier to obtain ouster orders and considerably
easier to obtain temporary protection orders.It is likely that police will issue notices on the scene commonly when
they do not take the respondent into custody. We should expect that orders will
now be much easier to obtain naming children.

Sending
perpetrators to perpetrator courses is certainly a good step, provided the
courses are of adequate quality and there is adequate funding.

It
remains to be seen as to whether magistrates will decline to make mutual orders
given the stated purpose of the Act that “the person who is most in need of
protection should be identified”.

[1]
Stephen Page is a partner of Harrington Family Lawyers, Brisbane. He is an
accredited family law specialist and has had a long involvement with domestic
violence issues. He was the Queensland Law Society representative during
consultation sessions with the community as to the draft Domestic and Family Violence Protection Bill in 2011.

[13]
“On face value, one could argue that current Queensland criminal law can or
does deal with domestic violence.The
Queensland criminal law as set out in the Criminal Code and other specific
statutes constitutes as offences, a range of behaviours including the kinds of
physical assaults experienced by victims of domestic violence.With the exception of rape by one’s husband,
on which we say more later, the punching, kicking, biting, whipping and
stabbing, as well as the burns, attempted strangulations and deprivation of
liberty reported by victims are all covered by the current criminal law.What is clear, however, is that the majority
of spouses who abuse their partners in these ways are not being charged with
criminal offences – their behaviour is not subject to the processes of the
criminal law.”Report of the Queensland
Domestic Violence Task Force, beyond
these walls, 1988 p.147; H Douglas and L Godden “The decriminalisation of
domestic violence, 2005.”

[16]
That “likely” was too heavy a burden to prove.I question though, whether “necessary” or “desirable” is any
significantly different test.I suggest
that to determine whether it is “necessary” or “desirable”, it is really
necessary to look at the risk of further acts of domestic violence and which
one for all intents and purposes looks at the likelihood of further acts of
domestic violence being committed.

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am a partner with Harrington Family Lawyers, Brisbane, a long established boutique family law firm. I have been admitted for over 20 years, and practised primarily in family law in that time. I have practised in all areas of family law, including:surrogacy,
divorce and separation,
property settlement,
custody and children's disputes,
Hague convention matters,
defacto property disputes,
gay and lesbian disputes,
domestic violence,
pre-nuptial and cohabitation agreements, binding financial agreements,
adult and child maintenance,
child support, adoption and
child protection matters.
I am an accredited family law specialist and am on the panel of independent children's lawyers.
I have helped community groups over many years, especially those involved in promoting equality and combatting the scourge of domestic violence.